[S.47 CPC] Power Of Executing Court Limited To Specific Questions On Execution, Discharge, Or Satisfaction Of Decree: J&K High Court

A bench of Justice Javed Iqbal Wani has clarified,

“The scope of Section 47 is that it empowers the Executing Court to determine all questions arising between the parties to the suit or their representatives relating to the execution, discharge or satisfaction of the decree and not the questions which ought to have been raised during trial, at the time of filing of written statement, framing of issues or arguments”.

Background:

The case involved a dispute over maintenance arrears claimed by a woman against her deceased husband's brothers. The woman had obtained maintenance orders under the Hindu Adoptions and Maintenance Act, 1956 (HAMA), which the brothers contested in execution proceedings.

After hearing the parties the executing court upheld the claim of maintenance of the woman from the assets of the deceased, having vested unto the petitioners as also the non-inclusion of the amount of maintenance, which the respondent herein have had been receiving out of the maintenance proceedings instituted by her under the provisions of the Hindu Marriage Act, 1980.

Aggrieved of the same, the brothers of the deceased argued that the executing court exceeded its jurisdiction by awarding future maintenance after the husband's death, which they claimed could not be done in execution proceedings.

They argued that by directing them to pay maintenance from their assets despite the woman's alleged divorce, which they claimed was upheld by the Supreme Court, the executing court had overstepped its bounds.

Court's Observations:

Upon scrutinizing the arguments made, Justice Wani acknowledged that the nature and nomenclature of proceedings under HAMA are not defined and the orders passed are not considered decrees under the CPC. However, it noted that both parties submitted to the jurisdiction of the executing court regarding the execution of these orders.

“it is significant to note here that the nature and nomenclature of the proceedings instituted under the provisions of the Act of 1956 have not been defined or styled anywhere. It is also nowhere provided in the Act of 1956 that the order of maintenance granted under the said Act, be it under Section 18 of Section 25, would be an award or a decree to be executed as such.”

The court observed that the executing court exceeded its power under Section 47 of the CPC as this section only allows the executing court to decide specific questions related to the execution, discharge, or satisfaction of a decree, not issues that should have been raised during the trial.

The bench emphasized that Section 47 does not empower the executing court to decide all disputes arising between the parties.

While acknowledging the non-indulgence of the trial court on the issues of divorce as well as the question of the assets/estate to have vested unto the petitioners and a claim lodged thereto by the respondent for payment of maintenance to her by the petitioners out of the said assets the bench remanded the case back to the executing court for reconsideration.

The court thus directed the lower court to properly address the issues within the limitations of Section 47.

Case Title: Virender Kumar Chawla Vs Neha Chalwa

Citation: 2024 LiveLaw (JKL) 27

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